upDaTE on JuDgEs oF CompEnsaTIon CLaIms anD CasELaw
Workers’ Compensation Section
Chair: Anthony Cortese – Attorney at Law
O
ur CLE luncheon with
the Tampa Judges of
Compensation Claims
will start at Noon on
February 25, with the Honorable
Mark Massey moderating the
topics and introducing the new
replacements for our two local
retiring Judges of Compensation
Claims. We hope you can join us
at this important luncheon.
Regarding recent caselaw,
temporary partial indemnity
benefits were at issue in two state
workers compensation and federal
longshore appellate decisions.
In Sarasota County School Board v.
Brockman, 248 So. 3d 270 (Fla 1st
DCA 2018), the First District Court
of Appeals reversed an award of
temporary partial disability benefits
to a claimant, where the order
below did not make specific factual
findings on the nexus between the
injury and lost wages. The claimant
was a school custodian with almost
30 years of employment, and a few
compensable injuries, who was
six months from the date of full
retirement when she had another
work injury. She returned to
restricted duty at full pay with her
employer and retired when her
pension vested. When she filed
a claim for temporary partial
disability, her employer/carrier
denied the benefits on the basis that
her retirement was an intervening
cause that broke the chain of
JAN - FEB 2019
|
HCBA LAWYER
causation
covered only by
between her
state workers
injury and her
compensation.
loss of wages.
The Benefits Review
In a more
Board affirmed
detailed order on
the finding of the
remand, Brockman
Administrative
Law Judge that the
v. Sarasota County,
terminal and the
OJCC Case
employment as a
No. 16-013511
whole was shipping.
(August 24, 2018),
Join us at our CLE
Therefore, it was
it was found that
covered under the
the claimant’s
luncheon with the
Longshore Act,
assertions were
Tampa Judges of
even though certain
credible, that
activities, like
she faced a
Compensation Claims
manufacturing, might
choice between
on February 25.
not be covered if
retirement or
they occurred away
termination due
from the waterfront.
to work-injury
The employer
related absences,
also denied temporary indemnity
and that her head custodian
benefits on the basis that, although
did not comply with her work
the injury precluded the claimant
restrictions, which affected her job
from returning to work for the
performance. After the injury but
employer, their vocational
before retirement, her employer
evaluator found suitable alternative
had taken her to a hearing over
employment with other entities,
her absences and job performance
which the claimant could perform
under NLRB v. J. Weingarten, Inc.
despite his injuries. The
420 U.S. 251 (1975), and she
Administrative Law Judge did
contended she would have worked
agree that suitable alternative
until age 62 if she hadn’t face
employment had been located,
termination. Temporary partial
but because the claimant exercised
benefits were awarded based on
due diligence in applying for every
this nexus.
position located by the vocational
In another recent case regarding
evaluator and performed his own
a longshore claim, an employer
unsuccessful job search, he was
denied jurisdiction as well as
entitled to ongoing temporary
entitlement to temporary indemnity
total indemnity benefits. The
benefits. Dwayne Victorian v.
Benefits Review Board affirmed
International-Matex Tank Terminal,
this decision.
BRB 17-0584 (July 24, 2018). The
We look forward to an
claimant worked at a waterfront
interesting year with the Workers
terminal engaged in receiving and
Compensation Section and hope
shipping certain materials, as
to see everyone at the February 25
well as storage and manufacturing
luncheon.
using some of those materials.
The claimant was injured during
a manufacturing activity that the
Author: Anthony V. Cortese - Attorney
employer contended should be
at Law
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